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When A Lawsuit Is Too Big

Professor Deborah Hensler spoke with Adam Liptak of the New York Times on the current Wal-Mart class-action lawsuit and how using litigation to effect policy change can be controversial.

Can a class-action lawsuit be too sprawling to deliver old-fashioned justice?

Justice Antonin Scalia seems to think so, judging by his comments on Tuesday during the Supreme Court argument in the biggest employment discrimination class action in history.

“We must have a pretty bad judicial system,” he said, reflecting on what he had just heard from a lawyer for hundreds of thousands of women suing Wal-Mart over what they say was unfair treatment on pay and promotions. The lawyer had said that a trial judge could rely on statistical formulas rather than testimony and personnel records to decide how much money the company would have to pay each plaintiff if it lost.

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But those kinds of suits raise the separate issue of whether courts are intruding on areas better left to legislators and regulators.

“Using litigation to try and effect policy changes has always been controversial,” said Deborah R. Hensler, a law professor at Stanford.